Buenos Aires, October 10, 2001
CARS AND SEEN:
File No. 13.654-A entitled FIAT AUTO ARGENTINA SA C/DGA S/REC. OF APPEAL, and
CONSIDERING:
I.- That on pages 10/11 the plaintiff firm, through its representative, files an appeal against the Ruling No. 001/00 issued by the administrator of the Córdoba customs in file SA17 No. 228/98, by which said firm was sentenced to pay a fine in accordance with the terms of art. 954 inc. a) of the CA and also to pay taxes, for having been charged with an inaccurate declaration (merchandise of a different PA than that declared) in import clearance IC 05 No. 8180/98. The plaintiff states that it accepted the reclassification made by customs and that therefore the difference in taxes was agreed to be paid, but it is exclusively aggrieved by the fine imposed, basically maintaining that customs had no difficulties in classifying the resulting merchandise and invokes art. 957 of the CA, in which respect it claims that it has not been repealed nor has it lost relevance, insofar as it maintains that the declaration made at the office was complete and truthful and allowed the customs to determine the applicable appraisal, for which reason, in short, it understands that the difference in taxes in this case constitutes a question of appraisal and not a punishable infraction (in this regard it cites jurisprudence and doctrine that it considers applicable to the case). It requests that the appealed resolution be revoked.
II.- That on pages 18/27 the fiscal representative attaches the administrative acts in the background of this case (file SA17 No. 228/98) and responds to the transfer of the appeal. He makes a succinct description of the background of the matter and his response to grievances consists of a series of generic considerations about the characterization of customs violations, the type of violation of the inaccurate declaration, the legal interest protected in that violation (citing jurisprudence in this regard), and the system of (culpable) responsibility in matters of violation and the fulfillment or non-fulfillment of obligations by the client, without referring specifically to the argument of the plaintiff (on the invocation of art. 957 of the CA) except that the fiscal representative states that the declaration made in the case was neither truthful nor accurate. He requests that the customs decision be confirmed.
III.- That on page 31 the proceedings are elevated to this Chamber G and are submitted for judgment.
IV.- According to the administrative acts of the background of this case (file SA17 No. 228/98), the firm Cormec Córdoba Mecánica SA documented, through dispatch IC 05 No. 8180/98 registered with the Córdoba customs on 7.8.98/8708.99.00/8708.99.00.990, the importation for consumption of a batch of automobile accessories from PA (NCM) 3649 (and SIM 98B), claiming Brazilian origin and therefore intra-zone tariff treatment - MERCOSUR (it recorded and attached at the time certificate of origin No. 3/XNUMX), liquidating and paying only the VAT (see the dispatch documentation and the certificate of origin, which are in the envelope on page XNUMX of the aforementioned file).
As a result of the verification of the merchandise (the assignment was changed from the orange channel to the red channel - mandatory verification - due to the circumstance indicated in the act on fs. 2) the intervening UTV reported that it turned out to be merchandise in the same quantity and value, and with the same identification by part number, but from PA (NCM) 7326.19.00 (and SIM 7326.19.00.000E) with extra-zone tariff treatment and therefore with a difference in taxes, stopping the dispatch and filing a complaint for violation of art. 954 of the CA (see fs. 1 and 2 of the administrative acts).
At fs. 4 the plaintiff firm, Fiat Auto Arg. SA, requested the withdrawal to the square under bail of the detained merchandise; and at fs. 18 the request was granted, and delivery was made at fs. 20. At fs. 22 and back, the opening of a summary was ordered, imputing the firm Cormec SA for the reported infringement (paragraph a) and running the hearing of art. 1101 of the CA, notifying said act to said firm and to Fiat Auto Arg. SA (at the latter's address, see fs. 23 and back). Consequently, at fs. 24/27 Fiat Auto Arg. SA answered the hearing, and at fs. 28 the customs judge ordered that this presentation be rejected on the grounds that the imputed firm was Cormec SA, ordering at the same time that a new hearing be held for the latter. Therefore, at fs. 31/34 the firm Cormec SA responded to the hearing, and on pages 64 it was considered to have been answered. On pages 66 the legal opinion was issued; and on pages 67/68 the resolution appealed in the proceedings was issued.
V.- That, first of all, it is necessary to point out and clarify the situation that arises from the fact that in the summary of the proceedings the infringement has been imputed and a hearing has been held in this regard, to the firm Cormec SA, and the plaintiff firm, Fiat Auto Arg. SA, has been convicted, without any connection of any kind being able to be observed - between both firms. More specifically: the dispatch of the declaration in question was documented by Cormec SA as importer and the complaint was therefore formulated in respect of it; then without any explanation - Fiat Auto Arg. SA appeared requesting the withdrawal to the square under bail of the merchandise, and this request by Cormec SA was granted (?); subsequently the opening of the summary was ordered, imputing the infringement reported to Cormec SA and it was ordered that the hearing of art. 1101 be held for it (hearing that was notified at the same address - to both firms); The first to respond to the hearing was Fiat Auto Arg. SA, and the customs judge rejected this submission because the firm accused was Cormec SA, which led to a new hearing for Cormec SA and the subsequent submission (response to the hearing) by the latter (exactly in the same terms as the previous response by Fiat Auto Arg. SA), who was deemed to have submitted it and to have responded to the hearing; finally, the appealed judgment was issued, which condemned only Fiat Auto Arg. SA, the plaintiff in these proceedings, which was obviously the one convicted - the one that filed the present appeal, but without expressing any grievance or consideration regarding the aspect outlined (moreover, in his appeal, the plaintiff's attorney refers to his client as the accused firm, the one to whom the summary was instructed, and to whom the conviction was applied, without distinction of any kind).
The manifest irregularity (as it is reiterated - no link can be observed between the two signatures, which are two different and separate signatures as can be seen from the respective powers of attorney on pages 5/10 and 35/62 of the administrative acts -, except that the bonded warehouse where the merchandise was verified was identified, in the minutes on pages 2 of said acts, as that of Fiat Auto Arg. SA-Cormec SA), an irregularity as can be seen simply from the preceding description, and moreover incomprehensible with the elements in sight, however, does not prevent this Court from addressing the merits of the matter, disregarding the consideration of that irregularity without more than pointing it out - precisely because the plaintiff, convicted in the appealed judgment, not only does not complain about the point, but as was said - from its own terms it is clear that it has considered itself responsible for the statement documented in the office of the proceedings, and even charged in the summary (and not only and exclusively condemned), with which all aspects related to its procedural legitimacy (in the customs instance and in this instance) must, reasonably, be considered saved.
VI.- It should be noted that, although the plaintiff requests the revocation of the appealed judgment (which would imply that this includes both the fine imposed and the taxes required), however, from the context of its position in the customs summary and what is expressed in the appeal in this case (to which it is worth adding what it records in form F4 of fs. 1 of this case), it is clear that it is only aggrieved by the fine imposed and that it agrees to the tax aspect and even specifically - the reclassification made by customs, of the merchandise in question (that is, the plaintiff admits that the resulting merchandise should have been classified by the PA reported by customs and not by the PA declared in the clearance).
VII.- That, as to the merits of the matter, it should be noted first that the issue (now in the abstract) about the alleged and/or probable collision between the results of the María Computer System and art. 957 of the CA, insofar as it would not now be possible (since the System, in fact and technically, does not materially enable it) to oppose an incorrect or inaccurate classification in principle with an inaccurate statement in this regard, which falls within art. 954 - a complete and truthful statement, decriminalizing that inaccuracy (and this would be the contentious issue given the appealed ruling and the plaintiff's grievances), must be resolved, at the discretion of the undersigned, as has been developed in various judgments of this Chamber G, based on the interpretation that must be given to art. 957 of the CA (even before the generalization or mandatory SIM, since this rule is prior to the SIM), in the sense that said rule must be understood to refer to the reasonably inaccurate tariff classification... , since basically - the legislator could not reasonably promote that a PA be declared clearly inappropriate (with a beneficial tariff treatment), therefore probably knowing that another PA with a higher tariff level corresponds (PA that clearly corresponds), and at the same time correctly declare the description of the merchandise, so that if the classification difference is not noticed, less tax is unduly paid (especially today if a green channel is also assigned) and if it is noticed, the same amount of tax is paid as if the documentary had classified correctly, that is, without having to face the pecuniary penalty. Translating this criterion to the time of the SIM, the inaccurate declaration of a PA (which is today practically the declaration of quality and type of merchandise) would be a punishable inaccurate declaration if the classification (of the resulting merchandise or actually presented for dispatch) in the corresponding PA were not difficult, of total clarity, and it would not be so if the proper classification were complex or difficult (in principle debatable between the declared PA and the one that ultimately corresponds), in which case its inaccuracy would have been reasonable.
VIII.- That, however, and without prejudice to returning later to the previously mentioned aspect, in the present case it is appropriate to analyze the issue, first of all, from the aspect of fiscal damage, as an integral element of the imputed figure, that is, whether on the hypothesis of an effective inaccurate declaration of the PA- the effect of the potential fiscal damage has occurred or not, which would be based on the fact that the resulting merchandise (from a PA different from the one declared) would correspond to a higher tariff level, which in this case would be the consequence of it being subject to extra-zone tariff treatment (MERCOSUR) and this as long as the certificate of origin presented does not cover the resulting merchandise, but rather a different merchandise, as is the result of the criteria of the customs judge in the case at hand.
This is precisely, in the opinion of the undersigned, the main aspect of the issue, and the conclusion in this regard of the customs judge would be based (see the legal opinion of the administrative acts) on the fact that the certificate of origin presented covers merchandise of a PA (8708.99.00) different from the PA corresponding (7326.19.00) to the resulting merchandise.
The key point is then to determine whether or not the certificate of origin in the case covers the resulting merchandise, which, for the purposes of the infringement (and not merely for the tax purposes, since this aspect, in addition to the fact that as seen it is outside the question, it would be enough for the certificate to be simply inapplicable), would be irrelevant if the charge were for an inaccurate declaration of origin, since in such a case the certain fact should occur that the resulting merchandise was effectively not of intra-zone origin, a fact that does not arise only from the fact that the certificate of origin was inapplicable (due to non-compliance with validity requirements - an aspect now set aside by the jurisprudence of the CSJN -), but it should be proven and/or positively proven that the merchandise has a different origin than the one declared.
It should be noted that such accreditation is not presented in the present case; but that determination (whether the certificate of the case covers or not the resulting merchandise) must be made here because in the case a difference or inaccurate declaration of classification has been imputed, which in the customs criterion and by the SIM is equivalent to an inaccurate declaration of quality; that is to say, the merchandise would have resulted different from that declared.
Of course, if as in the case at hand - the merchandise in question was declared in the SIM office (due to the fact that it was classified in a PA) in the same way or under the same terms as those stated in the certificate, that is, declaring the same PA as that stated in the certificate, it could be derived from this - if the resulting merchandise were actually from a different PA than the one declared - that the certificate did not cover the resulting merchandise.
And it is at this point that it is worth remembering that the plaintiff admits that the resulting merchandise had to be classified according to the PA reported and considered appropriate by customs.
However, it should also be noted that such admission was undoubtedly true for the purposes of determining the tax liability, which was assumed as appropriate (and in this regard the decision is res judicata, cf.: arts. 1139 and 1183 of the CA), but also that it also questions the application of the fine, which is why, since the latter is an aspect of a criminal nature, it is appropriate to analyze it ex officio, in accordance with the powers of art. 1143 of the CA, and regardless of what the plaintiff could have agreed to in the tax aspect.
Based on the above, the certificate of origin refers (although as of PA NCM- 8708.99.00 which for customs would correspond only to PA 7326.19.00 - and thus accepted by the plaintiff) to parts or accessories for motor vehicles... (this by transcription of the text of the PA) and specifically- to corona cilíndrica DES. M-2826 (0700002826), this in addition to the net weight, the quantity of units and the FOB value of the total merchandise.
During dispatch, it was not possible (obviously due to the SIM) to describe the merchandise with its specificity (cylindrical crown), but it was possible to identify the product by its model and version (Part or article number: 0700002826) and also by the net weight, the number of units and the FOB value of the total merchandise, all in full compliance with the same data on the certificate.
It should be noted at this point that the merchandise resulting from the verification had, according to the acting UTV, see the complaint on fs. 2 of the administrative acts, the same weight, quantity and value with respect to what was declared (and therefore with respect to what was stated in the certificate of origin), but also and very especially - exactly the same identification by the part or article number (700002826). To this must be added as a decisive element of judgment on the point - that the UTV, far from stating in its aforementioned complaint that the merchandise was not a circular or cylindrical crown, limited itself to indicating that the articles of the resulting merchandise were forged, circular pieces, without yet presenting the definitive characteristics of the finished piece; and there is no doubt that such characteristic - effectively expressed - was the determining factor for the classification made by that UTV (hence, ultimately, for the inaccurate declaration reported and imputed). The latter is corroborated by observing the contents of the declared PA (that is, the same as that stated in the certificate) and the reported PA. In effect, the declared PA (equivalent to the respective subheading, without specific openings in the NCM) includes the other parts and pieces for motor vehicles... and considering the content of the preceding subheadings of the same heading - there is no doubt that it would include the cylindrical crown in question (as it is not in any dispute that this piece is a part for the manufacture of a car); and the reported PA refers to iron or steel articles (the other of the others). From which it can be clearly deduced that the piece actually presented for dispatch in the case (the result of the verification), would have been, for the UTV, a classifiable piece in the declared PA (8708.99.00), but that it was not so due to... not yet presenting the definitive characteristics of the finished piece, and that is why it was classified, merely as an iron/steel manufacture, in the reported PA (7326.19.00).
In the opinion of the undersigned and strictly adhering to the characteristics of the resulting merchandise according to the expressions of the complaint or finding -, the UTV would not have taken into account the provisions of Rule (general interpretation of the Nomenclature) 2 a., insofar as it (in its harmonization with General Rule 6) establishes that any reference to an article in a certain subheading (should be understood idem in a PA) also reaches the incomplete or unfinished article, provided that it already has the essential characteristics of the complete or finished article…. So it is clear - the unfinished article will not be classified by the subheading or PA of the finished article (which in this case would be the one that classifies the cylindrical crown as a specific part for the manufacture of automobiles) when it does not yet have the essential characteristics of the finished product. In the case - always to be observed by the UTV - the resulting pieces did not present the definitive characteristics of the finished piece, that is, no reference was made to the absence of the essential characteristics, so those pieces could reasonably be classified or considered as sketches of articles (covered by said Rule 2 a.) in the sense of Explanatory Note II to the aforementioned general Rule 2 a., and therefore classifiable in the declared PA, as the same finished or complete piece.
In any case, and even assuming that the definitive characteristics missing in the resulting piece were of such magnitude that they could have been considered essential (which in the opinion of the undersigned should have been expressly indicated and was not), what is truly relevant in the given situation is the identification in the certificate - of the article covered therein - by its part number and this in the particular circumstances that the mention (in the same certificate) of the PA recorded (in the sense that it was precisely the one that corresponded or instead it was a different one) depended, solely and exclusively, on an assessment of the degree of elaboration of the piece.
As a result of all the above, the undersigned understand that the certificate of origin in question, although it refers to a PA that customs considered incorrect and that the plaintiff itself admitted as such, nevertheless and in any case effectively covers the resulting merchandise, and therefore the intra-zone MERCOSUR tariff regime is applicable to said merchandise, which means that the fiscal damage of the imputed figure does not occur in this case.
IX.- That, in light of the provisions set forth in recital VII of this document, it should be noted that the reasons set forth in the preceding recital VIII constitute sufficient reasons to conclude that in this case the classification recorded in the dispatch of the proceedings was at least reasonable in the event that it was erroneous and/or debatable, for which reason the declaration of said classification should not be considered an inaccurate declaration that falls within the infraction for which the customs imposed a sentence.
X.- That therefore it is appropriate to revoke the appealed judgment, insofar as it was the subject of the appeal in this case, and therefore to annul the sentence to pay a fine imposed on the plaintiff in said judgment; with costs in order, the latter due to the nature of the matter, its complexity, and that the argument to arrive at the conclusion reached was introduced ex officio by this Court; to which it should be added that such modality of imposition of costs (in the case based on the fact that the aforementioned reasons would be sufficient merit in this regard) is given by virtue of the provisions of art. 184 of Law 11.683 according to the text given by Law 25.239, of mandatory and necessary application to the powers of this Court in customs matters (art. 1163 of the CA) (see in this regard the majority votes regarding the referred aspect - in the judgment of Chamber E of this TF N in case 10.694-A MOLINOS RIO DE LA PLATA, of 16.11.2000).
Therefore IT IS RESOLVED:
Partially revoke the Ruling Resolution No. 001/00 issued in file SA 17 No. 228/98, insofar as it was the subject of the appeal in this case, and therefore allow the fine imposed in said ruling on the plaintiff firm to be revoked, which fine shall be voided; with costs to be awarded accordingly.
Register, notify, return administrative acts to customs, and file.
This document is signed by Drs. Jorge C. Sarli and Elena D. Fernández de la Puente as Dr. Rodolfo H. Cambra is on leave (art. 1162 of the CA).
